A Guide to Thinking about SCOTUS Nominations
There is, understandably, a great deal of passion about SCOTUS nominations. If anything, we are talking about lifetime appointments. Still, I prefer a more dispassionate approach unless some factor exists to really justify a great deal of passion (and I recognize that passionate responses vary from person to person).
On balance, I have long taken a view that the issue at hand is whether a candidate is qualified for the office or not, and that from there presidents pretty much have the right to pick whomever they prefer and that the Senate is largely obligated to confirm qualified candidates (although thoroughly recognizing its right to objection to a nominee if there is legitimate cause that enough Senators agree upon). My thinking goes something like this:
1. Presidents tend to nominate candidates who are within that president’s basic ideological sphere. As such, there is no point in being surprised that Bush appoints someone in that vague center-right space of American politics or that Obama appoints someone from the similarly vague center-left. Not only should no one be surprised, getting up in arms over the basic ideology of a given nominee is pointless unless it is truly outside of the acceptable space of American politics, which is a rather unlikely outcome as presidents have little motivation to make such a selection.
2. While thorough hearings and public vetting are required and good, there is no point in a massive opposition campaign to a legitimate candidate for the Court. If the candidate lacks a major flaw and is qualified, then the president has made a constitutionally acceptable choice and the likelihood is that the Senate will confirm.
It takes a pretty massive amount of opposition to defeat a SCOTUS nomination—especially if the President’s party holds the Senate.
3. Justices once on the bench often do not behave as we expect they will (see, for example, David Souter, but even the retiring Justice Stevens). As such, histrionics about what they may or may not do once on the bench are almost pointless. A broader example that goes beyond talking about individual behavior of given Justices: after all those Republican appointees in the 1970s, 1980s and 2000s, abortion remains quite legal in the United States.
4. Following on from point #3: since we do not know what issues will come before the Court, and in what form they will arrive, we really have a hard time knowing what the Court will do, or how a given member will affect its behavior. The Court is not a legislative body that can address whatever issues it likes in whatever manner that it likes.
Conclusion: when a president makes an appointment to the Court, my main question is not about political inclinations (see point #1) or what I think they will do on the Court (see points #3 and #4), but rather simply about general qualifications (point #2).